www.ssoar.info Outlooks for the legal framing of paradiplomacy: the case of Brazil Andrade e Barros, Marinana Veröffentlichungsversion / Published Version Zeitschriftenartikel / journal article Empfohlene Zitierung / Suggested Citation: Andrade e Barros, M. (2010). Outlooks for the legal framing of paradiplomacy: the case of Brazil. Federal Governance, 7(1), 39-49. https://nbn-resolving.org/urn:nbn:de:0168-ssoar-342376 Nutzungsbedingungen: Terms of use: Dieser Text wird unter einer Basic Digital Peer Publishing-Lizenz This document is made available under a Basic Digital Peer zur Verfügung gestellt. Nähere Auskünfte zu den DiPP-Lizenzen Publishing Licence. For more Information see: finden Sie hier: http://www.dipp.nrw.de/lizenzen/dppl/service/dppl/ http://www.dipp.nrw.de/lizenzen/dppl/service/dppl/ OUTLOOKS FOR THE LEGAL FRAMING OF PARADIPLOMACY: THE CASE OF BRAZIL by Marinana Andrade e Barros International Law Center Brasil, Brasil Email: [email protected] Abstract: The last decades have seen a deepening of paradiplomacy which is an especially important phenomenon for the federal states. This development became a source of change in the constitutions of federal states in order to trace prospects and limits for such process. Brazil is part of the group of states where non-central governments reaching beyond the national borders have occurred without a legal framework specific to the issue. In a federal state known for its centralization like Brazil such discussion can be harsh but its relevance to local and regional development and to the balance of the federative pact turns is necessary. Keywords: Paradiplomacy, Brasil, federalism. Marinana Andrade e Barros 2010, “Outlooks for the legal framing of Paradiplomacy: The case of Brazil”, Federal Governance, vol. 7 no. 3, pp. 39-49. About Federal Governance Federal Governance is an online graduate journal on theory and politics of federalism and multi- level governance. Its mandate is to engage the global federalism community and reach out to outstanding graduate students interested in federalism and multi-level governance. By providing a platform for graduate students to have early success in their careers, Federal Governance seeks to promote and sustain interest in federalism and multi-level governance research among graduate students. Allied with the Forum of Federations and founding partner, Institute of Intergovernmental Relations at Queen’s University; Federal Governance aims to contribute to a global dialogue on federalism. 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Federal Governance ISSN 1923-6158 www.federalgovernance.ca Forum of Federations 325 Dalhousie Street, Suite 700 Ottawa, Ontario K1N 7G2 Canada © Andrade e Barros Andrade e Barros, Legal framing of Paradiplomacy: The case of Brazil” 39 Introduction Recent years have seen a deepening of studies on the international action of the so- called sub-national1 governments. It is an especially important phenomenon for federal states, since existing democratic regimes and federalism as a form of the state are considered relevant internal factors for the development of international relations of subnational governments (Vigevani 2006). Therefore, although it is not a phenomenon unique to federal states, the international insertion of non-central government has developed with some frequency and success in this form of state which makes this a relevant theme for the understanding of the contemporary contours of federalism. This development has meant that some federations have adapted their legislation to draw up the perspectives and limits of the international action of sub-national governments. Brazil is part of a group of states where non-central governments, reaching beyond the national borders, have formed without a legal framework dictating the process. This article seeks to understand how Brazilian national legal regulations have dealt with this phenomenon and how the process of legal framing of paradiplomacy is developing to meet the challenges this trend engenders. Initially, I analyze the actions of sub-national governments in international development, concentrating specifically on the causes themselves and their growth. Then the tendencies of the constitutionalization of the international relations undertaken by sub-national governments will be examined, before moving on to review the efforts to make it part of the law system in Brazil. Finally, I review the consequences of un-constitutionalized paradiplomacy. 1. The Development of Paradiplomacy Paradiplomacy refers to international action by non-central governments2 (Soldatos 1990).3 Widespread international action of federal entities began before the 1970s and 1980s. Explanations for this development range from factors internal to federations through to aspects acquired by the international system in recent decades (Keating 1999, Romero 2004). Within federal states the drivers of paradiplomacy often include the division of competencies and autonomy given to sub-units through federative pacts. The need for members of the federation to fulfill competencies laid out by Constitutional charters 1 Academically, it would be correct to use the term “sub-state governments”, given the distinction between State and Nation. However, due to the fact that it is generally accepted in literature, the expression “sub-national governments” will be used in this paper. In the same way, the term “non-central governments” will be used to refer to these entities, in contrast to “central governments”. 2 The term “non-central government” should be understood in a broad way, meaning a constituent unit of a federal country or an administrative division of a unitary state. 3 On possible discussions about the nomenclature, see: Zabala 2000; Romero 2004. Andrade e Barros, Legal framing of Paradiplomacy: The case of Brazil” 40 requires that members seek ways of meeting local and regional demands not fully met by the central government. Furthermore states’ reduced participation in their national economies in the 1980s and 1990s with the spread of neo-liberal economic policy began to be seen as an important instrument for the improvement of sub-national public policies. This movement is facilitated, in the case of federations, because of greater autonomy granted by central governments; unlike what has been seen to occur in unitary states. Also the evolution of the international system in recent decades has driven paradiplomacy. The beginning of international action by non-central governments took place in the larger context of the democratization of the international system; a process that began after the Second World War (Sassen 2001.) Therefore an important change occurred in the once exclusively inter-state system which had dominated the international arena since the 17th century. Although states remain the primary actors in this scenario, the acceleration of international flows – or globalization – and the development of regional integration processes have facilitated the emergence of important new players to a once foreign sphere. The processes of globalization and regional integration create favorable conditions for the increased action of sub-national governments in the foreign sphere. Waves of migration for example, bring about the need for non-central governments to deal with cultural and linguistic diversity that increase the probability of closer bonds with foreign institutions and governments. Furthermore, the expansion of multinational corporations has meant that sub-national governments need to develop policies focused on economic internationalization, preparing their population and territory for the arrival of foreign investments. The changes accompany a corresponding change in the approach of international problem solving; moving from a state-centric approach to one welcoming input from constituent units. The perception that regional and local level governments must be included in problem-solving efforts related to these issues led to a greater consideration of these spheres in efforts of international agencies and organizations.4 There is a tendency for paradiplomacy to supplement the activities of non-central governments in their sphere of competence with the unique aspect that they go beyond national frontiers. In extremely rare cases, the international relations of sub-national governments go against the foreign policy of the federal government or encroach into jurisdictions outside of a given non-central government. 5 4 Therefore, during the 1990s, the United Nations held large conferences which were drivers for sub-national governments, and, above all, the local powers were able to establish themselves on the international scene (Rodrigues 2004, p. 441). Along the same line, in 2000, the United Nations launched the Goals of the Millenium, considered